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SCA/5995/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5995 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5996 of 2010
To
SPECIAL
CIVIL APPLICATION No. 6003 of 2010
=========================================================
SAHDEVSINH
KESHUBHA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
KL DAVE for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
2.
MR OMKAR C DAVE for Respondent(s) : 2,
NOTICE SERVED for
Respondent(s) : 3 - 4.
MR DIPEN A DESAI for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/03/2011
ORAL
ORDER
The
affidavit-in-reply is filed on behalf of respondent No.2 –
Special Recovery Officer. In this group of petitions, the
petitioners have challenged the notice dated 04.01.2010 (Page –
14) issued by the Special Recovery Officer, the Gujarat State
Co-operative Housing Finance Corporation Limited, Ahmedabad for
attaching and auctioning the property of the petitioners mentioned
thereunder, which is said to be outstanding dues and remained unpaid
since long.
The
petitioners, who happened to be members of one Laxmi Apartment
Co-operative Housing Society Limited had taken respective loan and
the loan remained unpaid. Appropriate proceedings before competent
Courts were taken. The petitioners have submitted that the society
was ordered to be wound-up under Section 107 of the Gujarat
Co-operative Societies Act, 1961 and the winding-up orders were made
long-back and the proceedings of the winding-up were to be treated
to have been concluded within seven years. As per the statutory
provisions, Authority could not have issued notices for recovering
the dues under the notice, which is impugned. This Court (Coram:
Smt.Abhilasha Kumari, J.) on 12.05.2010, issued notice relied upon
the decision of Hon’ble Apex Court in case of Nayanaben
Jashvantsinh Vihol Vs. State of Gujarat and Others reported in
2010(1) GLH Page No.538 as
the Liquidator in question was appointed way-back in 05.11.1998 and
therefore, the period of seven years have already been passed and
expired on 31.12.2006 and impugned notice came to be issued on
04.01.2010. Therefore, notice was issued and interim relief was
granted, staying operation and implementation of the said notice.
Learned
advocate for the petitioner submitted that the dues were admittedly
time barred as on date the judgment of this Court in case of
Nayanaben Jashvantsinh Vihol Vs. State of Gujarat and
Others reported in 2010(1)
GLH Page No.538 though has been
stayed, is not overruled and
in this view of the matter, the petitions deserve to be allowed. The
learned advocate for the petitioners submitted that petitions are
required to be allowed and no other submission have been canvassed
in support of the prayer made in the petitions.
Learned
advocate for respondent No.2 has taken this Court through the
affidavit-in-reply and annexures thereunder. Learned advocate for
respondent No.2 drew this Court’s attention to the fact that
petitioners, who are members of the Laxmi Apartment Co-operative
Housing Society Limited i.e. society-in-liquidation approached this
Court by way of Special Civil Application No.2138 of 1991 with
almost identical prayers as mentioned in affidavit-in-reply filed on
behalf of respondent No.2 and in the said proceedings, the
petitioners were required to file undertaking, which is also placed
on record. In this proceedings, the filing of the earlier petition
and undertaking thereunder and the disposal of the said petition has
not been disclosed by the petitioners. Thus, petitioners have
suppressed the material facts and obtained the interim orders in the
present group of petitions. Learned advocate for the respondent
further submitted that the earlier petition being Special Civil
Application No.2138 of 1991 contained petitioner No.1 as heirs of
deceased Shri Chandulal Maganlal Modi, whereas in this group of
petitions in in Special Civil Application
No.5998 of 2010, the name of petitioner is shown as Shri Chandulal
Maganlal and not shown as deceased nor heirs of deceased are brought
on record. It shows that petition is filed by or on behalf of
Chandulal Maganlal i.e. a dead person. This should weigh against the
petitioner under article 226 of the Constitution of India. Learned
advocate for respondent No.2 thereafter invited this Court’s
attention to the order made by the Liquidation Officer on 22.01.2001
and submitted that based upon this order requisite certificate is
issued, which has the effect of empowering respondent No.2 for
recovering dues mentioned in the order dated 22.01.2001 as arrears
of the land revenue. Learned advocate for respondent No.2 invited
this Court’s attention to the Gujarat Co-operative Societies Act,
1961 and contended that the debt in question, which is subject
matter of notice impugned cannot be said to be time barred as to
allow the petitions.
This
Court has heard learned advocate for the parties and perused the
annexures and reply. The facts remained to be noticed are that the
petitioners, members of the society had challenged the debt and
their liability and sought relief by way of Special Civil
Application No.2138 of 1991. The petitioners had filed undertaking
that they will regularly pay installment of loan every month, which
should not have been ignored by the petitioners. The order
dated 22.01.2001 passed by the Liquidator is enforceable as the
decree. It was certified by the competent Authority under Section
103 of the Gujarat Co-operative Societies Act, 1961 that the order
of the Liquidator dated 22.01.2001 is sought to be implemented vide
impugned notice. Therefore, it cannot be said that it is time barred
from any angle and in any manner. The respondents are justified in
contending that these petitions do not deserve to be entertained,
even on account of suppression of fact, which actually deals a
serious blow to the credibility of the petitioners. The petitioners
ought to have taken sufficient care to see to it that the facts are
placed on record and thereafter attempted to make out their case,
instead of other way, as could be seen from the record. As mentioned
above, petitioners have suppressed the fact of filing of earlier
petition being Special Civil Application No.2138 of 1991 and dead
person is shown to have filed petition, which is not proper. Suffice
it to say that Court do not entertain such petitions, when facts are
suppressed. Therefore also judgment of Nayanaben
Jashvantsinh Vihol Vs. State of Gujarat and Others
reported in 2010(1) GLH Page No.538 is
of no avail. That apart, the provision of Section 103 of the Gujarat
Co-operative Societies Act, 1961 is absolutely clear in respect of
Recovery Officer/ Authority’s competence for recovering dues for
certificate in question. I
am of the view that the petitions are bereft of merits and deserve
to be dismissed. Hence, dismissed. Notice is discharged in each
petition.
Interim
relief, if any, stands vacated. No order as to costs.
[S.R.BRAHMBHATT,
J.]
..mitesh..
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